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Comment by rlpb | Hacker News Reader

> ‘I was simply not aware of the duties on a prosecutor to make sure an expert witness was fully aware of their duties.’

We cannot have a system where people can be wrongly convicted while being denied a proper defence due to incompetence. Either incompetence cannot be a defence, or convictions must not be permitted to be made where incompetence might lead to an injustice.

Or another way of looking at this: "the prosecution's case would fail if anybody involved on the prosecution's side turns out to be incompetent" should be an absolute defence in any trial and if that situation arises then it must always fail to result in a conviction.

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I was at traffic court yesterday and before they got to my ticket they were processing actual criminal cases with defendants walking in the courtroom in hands and feet cuffs.

I was watching the public defender interact and process each case that walked in.

I was extremely unimpressed with the public defender who didn’t appear to know basic details on any of the cases she was representing.

It was a sad reminder that the justice system is still very much imperfect, and the outcome of many cases depends heavily on whether you have money to pay attorneys.

The simplest “proof” of the preferential treatment you get with a paid attorney is you’re almost always the first case on the docket if you have paid representation. Then after the cases with paid representation they move on to the public defender cases.

I would be terrified to face the US justice system without heavy weight defense attorneys - even if I’m completely innocent - because the system isn’t fair by default.

Sadly public defenders are in wildly short supply, some articles I’ve read even describe it as a crisis. They simply can’t keep up with the caseloads.

We should use the same mechanism we use to fill jury pools.

which leads to another problem, if we can't supply them, we need to reinvent our court system to become more realistic for people to defend their own case without having to worry about the nitpicks of "oh you didn't just say that did you now you're in more trouble you should have had a lawyer"

laws aren't difficult to read nor understand, its however very tedious to make sure you're not missing something important from some chapter of a book you were unaware of. understanding the history of how cases TEND to be prosecuted and dealt with is another whole cultural side of things that are just not obvious to the layman. and this kind of information can and should be more accessible to people currently being processed through the system

i think in the age we currently live in this is a realistic goal for improvement that would also humanize the process quite a lot

As a lawyer, I feel like your comment is reflective of the general misunderstandings around this issue.

Sit through a docket or two and you come to a few conclusions. 1. They're all guilty. This is a corollary of: prosecutors like shooting fish in a barrel, not prosecuting cases where they might have to actually work. 2. The role of the defense lawyer in 99% of these cases is to keep them from disrupting the proceedings. 3. Probation / alternative sentences don't work. A good horsewhipping in the town square and 90 hard labor on the farm would be a much more effective way to get through to these people (and thus ultimately more humane).

Even if what you're saying is true (and I grew up with dudes like you're describing) it's extremely important that those folks get due process. If we (the non-criminals) don't hold up the ideals of civilization then we lose the right to perform "justice" on these offenders, eh? I've heard dudes say, "the cops are just another gang", due process is how we make that not true.

Further, a lot of the people who can't control themselves are /also/ victims: lead in the water and air, moms who took drugs during pregnancy (the most out-of-control kid I knew back in the day was a "crack baby", he was neurologically damaged before he was born.)

Whippings and forced farm labor (you realize you're describing slavery?) are not a solution to criminality.

people who can't control themselves are /also/ victims:

We tried that approach for the last 60 years. Sit through a docket to witness for yourself its efficacy.

Corporal and capital punishment don't reduce crime.

All they do is give people - often people who have no involvement or had no impact from the crime - the feeling of vengeance.

Except it's the criminal justice system, not the criminal vengeance system.

> We tried that approach for the last 60 years.

Have we really? I'm no expert, I'm asking.

In any event, two wrongs don't make a right.

The kind of vindictive punishment you advocate is itself wrong.

Let's look at systems that have managed to lower rates of recidivism?

Oof.

There's another attorney in this thread who seems genuinely unsure why we should be devoting time, effort or energy into people who are "obviously probably guilty". Genuinely unsure might be stretching it too. "Complex criminal defense cases where there's a decent chance the person may not be guilty should get resources, everything else? Eh."

Like... Law School 101. That attitude in an attorney is genuinely disappointing at best, frightening at worst.

I work in a field where "compassion fatigue" and burnout are very very real things (after you administer Narcan to someone for the third time that week, or you go to the home of the person who calls 911 at 3am because they stubbed their toe several days ago and now it has a hangnail that's catching on their bedsheets and making it "difficult" to fall asleep)...

but being blunt - the day those feelings overtake you is the day you should consider what you are doing and why you are doing it.

It has nothing to do with fatigue. It has to do with being able to see rather obvious patterns when they're repeated 100 times a day, day after day, in courtrooms across the country.

As an attorney, I will always fight zealously for my clients, that doesn't mean I can't form opinions about the system as a whole.

> As an attorney, I will always fight zealously for my clients, that doesn't mean I can't form opinions about the system as a whole.

The point of compassion fatigue is that when you start forming these opinions about the people you see, consciously or subconsciously, can you be as sure you are as zealously advocating for your clients as they deserve?

I don't mean to impugn you, to be clear. But that's the thing in EMS too, how am I sure I don't dismiss a patient's complaint as whining, when it's the third time I've seen them that week, even if I take care of everything else they have going on? And how long is it before that compassion fatigue leads me to miss or overlook a pertinent finding that has consequences for them?

a part of the "justice" system is not just to get justice for victims who have been wronged but its also to get justice for the guilty, to make them understand their wrongs and feel that they should be punished

to infuriate people with petty bureaucracy and form-filling as an extremely dangerous gotcha-game does not make them feel like the system actually does them "justice". punishments are meant to bring someone back into society, but if they go into that punishment thinking they were wronged by the process itself, its only making it worse for everyone

Everyone is entitled to due process and a certain burden of proof regardless of whether or not the vast majority are generally guilty.

The courts should not be dictated by efficiency, but by everyone's rights being fully respected. I understand what reality is but we should strive for better and accept nothing less.

> laws aren't difficult to read nor understand, its however very tedious to make sure you're not missing something important from some chapter of a book you were unaware of.

Yea, as a non-lawyer, this is what would terrify me away from representing myself in court. Not whether I was guilty or not, but the fact that it's such a procedural gotcha-game: "Haha! You did not say Magical Incantation 1924 in front of a judge in response to the opposing counsel's Magical Incantation 266! You automatically lose!" Or "Haha! You didn't file a form 27B/6 in the right clerk's office before the right deadline! You automatically lose!"

> oh you didn't just say that did you now you're in more trouble you should have had a lawyer

Yeah, there is so much absolutely farcical stuff that happens in our court systems that would make for champagne-tier black comedy, if it didn't affect people's lives so much.

Accused: "I want a lawyer, dawg!"

Police: No lawyer.

In court...

"I asked for a lawyer and they refused to let me get one."

Prosecutor: "Your honor, the defendant asked the police for a lawyer dog, and knowing no canines that had passed the bar, they were unable to find one. This isn't their fault."

Judge: "Sounds entirely reasonable to me. No issue here."

This is a common class of problem with this kind of system. The state level public defender offices are mandated to exist since Gideon v. Wainwright, but the courts aren't really in a position to dictate budgeting. Legislatures could e.g. require budget parity with the prosecutor's office, but largely don't want that because helping accused criminals is politically unpopular.

> It was a sad reminder that the justice system is still very much imperfect, and the outcome of many cases depends heavily on whether you have money to pay attorneys

I’m not sure that’s true. Prosecutors also throw far more resources into cases with expensive private attorneys.

I saw the end results of the process from the appellate side (where the facts are fully developed), and I know lots of public defenders. I think what you’re overlooking is that 99% of those people are facially guilty. The police and prosecutors are lazy, they don’t want to prosecute marginal cases that don’t have rock solid evidence. My wife defended a murder case where they had almost continuous CCTV video of the defendant shooting the victim and driving home to his house. Just one camera angle after the other. And that was a sufficiently exciting case to warrant her big firm getting involved pro bono.

I also see all these ACLU and Innocence Project mailings. Rarely do you see someone who isn’t guilty. Usually the case is about some legal technicality, or some principle such as whether teenagers should be prosecuted as adults or whether gang members involved in a fatal robbery should all be tried for murder when only one pulled the trigger.

So what you’re seeing is the system doing the best it can with this huge volume of obviously guilty people. The public defenders I know are all on the lookout for the rare defendant who might be innocent.

Even "obviously" guilty people are entitled to competent, robust, and vigorous defenses (and whether or not this 99% are truly "obviously" guilty is an entirely separate HN thread). This is where the imperfection lies: These public defenders have such a huge case load that they cannot properly and competently defend their clients.

If I could wave a magic wand, and we'd magically have 100X the number of public defense attorneys, each now having the ability to properly prepare for and litigate for their clients, even if those clients were "obviously guilty," why wouldn't I?

Sure, but what does a competent defense look like when someone is caught on CCTV breaking into a cell phone store and stealing phones, and then the police find text messages of him fencing the stolen phones? The thing about "poor people crimes" is that they're either easy to prove because what's illegal is doing something you're not allowed to do. (Or they go unsolved, because they can't find who did the thing.)

The reason "rich people" crimes are so expensive to defend is because those crimes often involve conduct that could be a crime or not depending on what various people were thinking at the time they did it, or whether it amounts to a pattern, etc.

I agree with the principle that anyone accused of a crime that warrants a complex defense should get one, whether or not they can afford it. But that's a small fraction of all prosecutions. Society needs to be able to handle the guy who breaks into the cell phone store and was caught on camera in a cost-effective and efficient way.

> Society needs to be able to handle the guy who breaks into the cell phone store and was caught on camera in a cost-effective and efficient way.

I think if you were the defendant, you might feel differently about the importance of making your trial cost-effective and efficient vs. competent and robust. Even that guy who is on TV breaking into cell phone stores should have the opportunity to cast doubt in the jury's mind, unless we think it's a good idea to have a separate "efficient" court system for people who are "obviously" guilty.

> I think if you were the defendant, you might feel differently about the importance of making your trial cost-effective and efficient

Of course! But that’s just an invitation to put aside reason and think with emotions. That doesn’t mean it would be fair to society to do that. And why should we allow a small class of anti-social people to revictimize society in that way?

I was a card-carrying ACLU member for a long time. But working in the court system really opened my eyes to the reality is that there’s a fraction of the population that’s anti-social and repeatedly victimizes society and the communities in which they live. They have rap sheets a mile long, and are prosecuted based on piles of evidence. Society needs some way to deal with these people that’s just to them but also just and fair to society.

The principle of innocence until proven guilty, the standard of reasonable doubt, and the inefficient trial by jury of one's peers is the best we have figured out so far. If there is a better way, I think everyone would love to hear it. But before you propose it, please consider whether it would really provide justice if you were the defendant with the mile-long rap sheet, but who didn't do it this time.

Clearly it's not the best we have figured out, or even a very good method. Look at how much more peaceful and orderly places like Japan and Singapore are, where you have effective, efficient justice.

Again, asking me to think about what if I was the defendant is an invitation to be antisocial. Of course, in that moment, I would say "fuck society!" But that's not a good way for society to make decisions for the good of the whole.

> Sure, but what does a competent defense look like when someone is caught on CCTV breaking into a cell phone store and stealing phones

Protecting their rights? Ensuring an overly zealous prosecutor doesn't overcharge the case?

I was the defendant in a case (charges dropped completely very quickly) where the prosecutor had flagged me as a "flight risk" and wanted me held with a stupid amount of bail and a surrendered passport because I was "here on a temporary work visa only" (actually, lived here 17 years as a permanent resident) and had "no ties to the community" (other than owning a house in the area for several years, working in the area, including as a volunteer firefighter/paramedic, oh, and having a partner and child).

I would easily have spent a good amount of time sitting in jail before the charges were dropped if I hadn't had competent representation, and that's even before we consider the facts of my case.

Why? If you knew 100% someone was guilty, why would you defend them? Isn't the point of the "strong defense" that we haven't established guilt? If someone is guilty, then give them the consequence of the crime, unless you think having some guilty people get away with it (at substantial cost) is in the best public interest?

I understand providing a way to determine guilt and innocence without bias, but if everyone knows someone is guilty, isn't trying them and/or defending them just a waste of resources, with the best outcome being "same as plea bargain" and worst possible outcome being "goes free without punishment, despite having committed crime"?

It’s a token effort to catch the false positives. If you put in no effort you’d start to become overconfident in the guilty assessment and an increasingly larger percent of defendants will be considered guilty even though more of them will in fact be innocent.

Plus there is more to it than guilty/not guilty and the state should not be permitted to take shortcuts.

> If you knew 100% someone was guilty, why would you defend them?

Ask defense attorneys, I think you'll be surprised at the number of "yes" responses. How do you establish that "everyone knows" someone is guilty? You're assuming the conclusion as true and then reasoning from there. Put yourself in the shoes of a defendant who "everyone knows" is guilty. Would you not still want a robust and aggressive defense?

Our whole concept of justice enshrined in the US Constitution is that the truth must be ascertained by a jury of your peers from a fair presentation of the evidence and arguments in a court of law. And it is entirely to prevent people from being "rubber stamped" guilty and discarded. At its heart the trial is about ascertaining the truth, with the understanding that the verdict has some powerful gravity for everyone involved.

Ok I get what people are saying, but you are describing the common case, where guilt is in question. I'm talking about the parent comment which is saying "even if someone is known to be guilty they still deserve defense." You're talking about the common case -- where there is doubt to guilt and/or someone maintains innocence. Do you also believe someone who admits guilt should still be defended (e.g. hide this fact from the jury and proceed as though they didn't admit to the crime)? The only reason for defending someone is because they may be innocent, there is no advantage to excusing a guilty person. Or do you believe there is an advantage to excusing the guilty?

I also understand why we have our current system, and that there may be false positives, I'm merely commenting on the fact that we should not defend those that are 100% known to be guilty (and I'm not claiming that its easy to ascertain, but that in cases where people plead/confess, maybe its for the best).

Let's enter fantasy land for a moment and assume that we even can ascertain whether someone is "100% known to be guilty" without a trial. Say we have a crystal ball that we can just ask. That person still is entitled to representation to ensure that all the proper procedure was followed (was the law somehow broken when the crystal ball was consulted? was the crystal ball accurately calibrated and configured? is it a real crystal ball and not a knock-off that always says "guilty"?).

Even if there was no crystal ball! The defendant admitted and signed a confession. He still needs a defense. Was the confession forced or obtained under duress? Did the defendant know what he was confessing to?

And even if there was no crystal ball, the defendant confessed voluntarily and understood fully what he confessed to, cooperatively admitted everything to the point where there is zero chance of reasonable doubt. He still needs a defense. Who is going to ensure that a fair punishment is imposed? Without a defense attorney and proper procedure, what stops the judge from simply imposing the maximum sentence for everyone?

Thanks this changed my mind and I agree with your assessment.

I know a public defender (in family law, so adoption, foster care, child endagerment, etc).

The state pays her $75/h. Most people locally look at that dollar number and feel she is out of touch to complain, but she also has to:

1. have an office that is not her home that can recieve certified mail (and be signed for, no po boxes)

2. pay any staff out of that.

3. Maintain her own computers, and software and access to services needed

4. Hire her own PI's (if needed) out of her own pocket

5. Any other expert consultants out of her own pocket

She also doesn't get any health insurance, or other benefits. And the best part, is the state has a formula they don't disclose, that determines how many hours work they think each case is appropriate for, and don't care how many she actually works. Every time she is paid, it includes a paper only invoice that she then gets to reconcile manually to see which cases are paid off, which are only partially, and which they forgot to pay that month.

Wow. I had heard that public defenders certainly weren’t in it for the money but that’s worse than I expected.

It seems like the biggest sink would be paying someone to staff the office. I think some coworking spaces are set up to be able to accept certified mail. Has she looked into that?

The simple, straightforward, and therefore politically impossible solution is to require parity in funding for the district attorneys' offices and the public defenders' offices.

As someone who absolutely agrees with this in principle, I disagree with "simple and straightforward" - you need to look at case categories (felonies and classes thereof, gross misdemeanors and misdemeanors) for a view on expected effort, and then you need to look at "what proportion of those cases have private representation".

And then this will always be a trailing metric.

I mean, personally I think the simple answer is just blanket equal resources, but there's no motivation to make that happen, but certainly won't be without things like the above.

Elected prosecuting officials is a bad thing, IMHO. The incentives are all wrong. They get elected and re-elected on "being tough on crime", which means convictions, which leads to the simple fact that the US abuses the concept of the plea deal enormously.

Thousands of people who would otherwise be found not guilty (if not are factually innocent) accept plea deals just to be done with a process that can take years to resolve (not to mention money, or freedom, or both, in the interim).

In other countries the use of the plea deal is generally fairly rare, and comes with stringent judicial oversight. Here it is often the first option. "Well, what would your client plead to?"

The fact that this isn't the case after 200 some odd years exposes us. We don't care about the right to a fair trial for people who don't have money, it's a lie we tell ourselves.

I think it should go beyond that, in that public defense and prosecution should come from the same pool of lawyers and they are graded by success on both sides by type/class of case.

The situation that you just described would be a pleasant improvement for many of the private sector sole proprietors and small business owners that I know.

Her situation sounds actually far more stable and easier than theirs in a variety of ways. Her client is likely quite well-established, and the risk of it "going out of business" or running into insurmountable funding issues is small. Her client will likely be feeding her a steady supply of work, without interruption, effectively forever. It doesn't sound like she has any marketing, advertising, or customer-acquisition overhead. She doesn't have the overhead of negotiating a contract and fees with each client. Her working conditions are likely quite safe and comfortable (as compared to those in the trades, for example).

I don't think she has much to complain about when compared to what those in the private sector have to deal with.

Are any of these unfortunate private sector proprietors the sole bulwark against their clients ending up in jail or prison, and always up against better-funded opponents?

You're comparing apples and something far, far different than oranges.

Don’t small businesses typically get to set their prices though? I realise there’s competition and suchlike but that seems like a pretty important lever that most businesses have but which the public defender described above does not.

Washington State defined its limits for public defenders as:

Felonies: 150 cases per year Misdemeanors: 300 cases per year Juvenile cases: 250 cases per year

So a total of 700 cases per public defender, per year. Assuming no vacations or sick leave, total working hours is about 2000 per year, so they could average not even 3 hours per case, and of course felonies are likely to eat up the lions share of whatever hours they could spend on them.

You're not going to get effective representation from any public defender, even with the most competent lawyers in the world. They simply don't have enough possible hours to spend on any given case to provide competent defense.

Check out the podcast The Kids of Rutherford County to hear public defenders talk about how impossible the work is; especially when you have an absolutely corrupt judge. It's goddamn maddening.

https://www.propublica.org/article/kids-of-rutherford-county...

If an alien landed on planet Earth to watch these cases as they unfold without knowing anything about the roles of the judge, prosecution, and defense, they would inevitably come to the conclusion that public defenders job is to assist in the processing of arrestees so that they can be sent to prison quickly and conveniently.

> It was a sad reminder that the justice system is still very much imperfect,

We don't have a justice system. We have a conviction system. When prosecutors run for office (haha!), they don't brag about all the times they thoroughly investigated an alleged crime and determined that the defendants were innocent and should have charges dropped, they brag about how many they've put behind bars. And, in some cases, it's turned out that those they bragged about were in fact innocent. Additionally, when appeals seem destined to exonerate someone already convicted, something like half of prosecutors will go to heroic lengths to protect those convictions even when forensic science makes innocence clear.

> I would be terrified to face the US justice system without heavy weight defense attorneys

Often, it's enough to have one at all. Public defenders will browbeat you to plead out, and if you insist otherwise, they'll just wink at you and you know they'll sleep through your trial. They exist to give the appearance of defense.

The biggest and most important reform we might enact would be to disallow DAs from using plea bargaining for more than 3% of cases that come through in any given calendar year. The second biggest would be to outlaw bail bonding.

It sounds like what you were watching was a first appearance, though I could be wrong. Depending on the circumstances, the public defender may not have even been appointed to the case until the hearing. The public defender may not even have had an opportunity to talk to the defendant prior to that, and is going mostly on whatever the prosecutor filed.

But that doesn't really matter that much for first appearances. The only real point of first appearances is to advise the defendant of their rights, the charges, take an initial plea (this is almost always a not guilty plea - negotiations for plea agreements generally don't start until after the first appearance), and officially assign a public defender to the case (assuming they are not hiring their own attorney). Depending on the jurisdiction and context a bond may also be set, or that may be in a separate hearing. In some jurisdictions a public defender isn't even present for first appearances, because there's so little for them to actually do.

The stereotype is that the public defenders are all incompetent. But if you actually talk to judges or criminal attorneys you will get a different picture. Judges in particular tend to have a lot of respect for the public defender's office. Honestly, in all the hearings I've seen involving an incompetent defense attorney, they are more likely to be private counsel than from the public defender's office.

This is why I truly believe that both Prosecutors and Public Defenders should be from the same pool of lawyers and that they are "graded" on both types of cases for promotion, pay, bonus, etc.

Where I live the public defenders just try to convince all their clients to plead guilty and take the lower charge. Was sitting near a public defender with his client in the courtroom once and his lawyer just told him plead guilty and he'll get a light sentence. The client protested that he was innocent, lawyer told him to plead anyway because the bargain charge wasn't serious.

I was nearly killed and sustained significant injuries by a driver who didn't obey the law. The crooked cop disabled his bodycam when interviewing a witness who saw everything close up. He only ticketed the driver for driving with a suspension and apologetically told him it wasn't his fault. The prosecutor was uninterested in what happened and, when the driver and cop didn't show up, ensured the punishment was the bare minimum wrist slap of an extra suspension. I didn't get the partial video until a month after the sham trial.

In the US my dad had something like this happen to him. His lawyer told him the charges were misdemeanors and it'd be better to plead out, so he did. After his prison term, almost a decade later, he successfully argued this in front of his state Supreme Court and was granted post conviction relief. At that point he'd lost almost a decade of his life, but he was now able to get a real job. Long way of saying I don't trust our legal system to be fair and I pity anyone caught in its gears.

Edit: the details were fuzzy. Rereading the case, he plead nolo contendere and it was a PCR trial decision appeal. I updated those parts.

What happened? The prosecution lied to his lawyer and said they were only seeking misdemeanor charges? His lawyer lied to him?

Do you by chance have a link to the decision? I'm interested in what went wrong here.

I debated not posting this, but what the hell:

https://law.justia.com/cases/south-carolina/supreme-court/20...

That's wild, he got 10 years with a nolo plea just for threatening a school clerk over the phone?? Yeah, terrible lawyer.

He always insisted he hadn't threatened her- just used choice words, but it was reported as a threat. I remember that after this, every phone call he had was recorded. Every one.

Man that's insane. 10 years is a bonkers sentence. Like even if this went to trial what evidence was there besides a phone record? You bet I'd push for a trial or at very least some discovery.

Wait, the lawyer said they were misdemeanors when they were really felonies? I would think even in that case the judge would be very clear someone was pleading guilty to a felony.

EDIT

Read your other post...wow. Even the worst attorney should be able to make sure their client understands the charges. In this case, the judge and prosecutor should have done the same. What a travesty.

That's absolutely insane. I know that no system is perfect, but how can someone get 10 years for a single threat over the phone?

I think you’re misreading what he’s saying. Let me translate from lawyer speak to regular speak

“Yes I knowingly broke the rules and got caught, but I don’t feel it was that serious, though I’ll admit the mistake if we can settle it with minor disciplinary action under the pretext that I just didn’t know any better”

If "ignorance of law excuses no one" is true, you would think it would be doubly so for a prosecutor.

Thankfully, this sort of action would get you a mistrial in the US. The prosecutors must disclose any exculpatory material to the defense.

Heck even a secret meeting with the judge, while it might not result in mistrial, is highly unusual in the US and could be brought up on appeal.

There are basically no circumstances where a judge should meet with representation of just one side. Especially when that side is the government.

There was a recent case in the US where:

1. The judge had a secret meeting with the prosecution.

2. The defence attorney found out about it, and challenged the judge about it.

3. The judge demanded to know how the defence attorney found out.

4. When the defence attorney refused to say, the judge ordered the attorney to be jailed for contempt of court.

https://www.billboard.com/pro/young-thug-trial-judge-denies-...

Yes and its a big story in the news and everyone knows about it. The Judge is clearly corrupt and the state supreme court have already weighed in. It's pretty clearly an extraordinary situation.

"the state supreme court have already weighed in"

Can you say more about this? The last I read, the state supreme court has accepted the case about the attorney's 'contempt of court' charge, but has not:

- issued any opinion related to any of these issues, or

- accepted any case about the judge being corrupt, recusing himself etc.

Did I miss some news?

Maybe I'm misremembering but did they not already get the defense attorney out of jail?

The defense attorney is out of jail pending the supreme court's decision on the contempt case.

This ruling has no bearing on the original case.

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